Citation Nr: 21008165 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-21 455 DATE: February 11, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), unspecified depressive disorder (depression) and anxiety, as secondary to military sexual trauma (MST) and/or service-connected kidney disease, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1978 to February 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied the Veteran’s service connection claim for a psychiatric disability. He then appealed this determination to the U.S. Court of Appeals for Veterans Claims (Court). In March 2020, the Court granted a Joint Motion for Partial Remand (JMR), which vacated the Board’s February 2019 denial of service connection for a psychiatric disability and remanded that issue to the Board for further consideration. The Board remanded the appeal in August 2020 to the agency of original jurisdiction (AOJ) for further development.  The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998).  The claim of entitlement to service connection for major depression has been recharacterized as one for an acquired psychiatric disorder, to include PTSD, depression and anxiety, as secondary to MST and/or service-connected kidney disease. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression and anxiety, as secondary to MST and/or service-connected kidney disease. The Veteran contends that his current psychiatric condition is related to his active military service. For the reasons that follow, the Board finds that additional development is needed prior to adjudication of the claim. VA treatment records show diagnoses of PTSD, depression and anxiety. See June 2020, August 2020 and November 2020 VA treatment records. The Veteran contends that his current psychiatric condition is related to military sexual trauma/personal assault in service. Specifically, he contends that in spring 1979 he was sexually assaulted at a party at Fort Ord, California. See December 2020 Correspondence. He alleges that he was given punch that was “spiked” with vodka and later woke up nude, sore and bleeding from rectum. Subsequently, he claims that he requested an oversees transfer and was sent to Germany where he thrived and excelled. The Veteran further reported that the alleged incident contributed to his panic attacks and impacted his post-military life. The Veteran’s military personnel records show that he was en route to Germany in February 1980. A November 2019 VA treatment record also indicates that the Veteran reported experiencing MST in the past. Additionally, during his September 2020 VA examination the Veteran reported that in Fort Ord he had a sergeant who was abusive. The Board acknowledges the August 2020 remand; however, VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran’s service records or evidence of behavioral changes may constitute credible supporting evidence of the stressor and allowing him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. Bradford v. Nicholson, 20 Vet. App. 200 (2006). In this case, the Veteran submitted his statement alleging MST in December 2020. As such, it appears as though the Veteran has not yet been provided with the requisite notice compliant with 38 C.F.R. § 3.304(f)(5). On remand, the AOJ should provide the Veteran with a VCAA notice that is compliant with 38 C.F.R. § 3.304(f)(5) and explains the types of evidence from sources other than the Veteran’s service records that may corroborate his account of the alleged personal assault in service. Additionally, in light of the foregoing, the Veteran must be afforded another VA examination to identify his current psychiatric disorder(s) and to determine whether any current psychiatric condition is related to his military service, to include the claimed personal assault. This matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment reports associated with the Veteran’s psychiatric claim. 2. Issue VCAA notice that is compliant with 38 C.F.R. § 3.304(f)(5), which includes an explanation of the types of evidence from sources other than the Veteran’s service records that may corroborate his account of the alleged personal assault in service. VA Form 21-0781a. Allow the appropriate time to respond. 3. After completing #1 and #2, attempt to verify the Veteran’s claimed stressor, if possible. Document all efforts made, to include the steps taken in the attempt to verify the stressor or why verification was not possible. 4. After completing all of the above, schedule the Veteran for a VA examination to determine the nature and etiology of his current psychiatric disorders. The entire claims folder must be reviewed by the examiner, including a copy of this Remand. All appropriate diagnostic testing must be conducted. a) The examiner is asked to identify all current psychiatric disorders. b) If a diagnosis of PTSD is made, the examiner is asked to state whether the diagnosis is made based upon any verified stressor. Or, if a stressor is not verified, the examiner is asked in his/her medical judgment to opine as to the likelihood that the reported personal assault occurred based upon the evidence of record or evidence of behavior changes and if so, whether a diagnosis of PTSD is warranted. If a diagnosis of PTSD is made, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s PTSD is related to service. c) With respect to each additional psychiatric disorder present during the period of this claim (other than PTSD), to include depression and anxiety, the examiner is to state whether it is at least as likely as not (a 50 percent or greater probability) that such disorder originated during service or is otherwise related to service, to include the Veteran’s reports of personal assault in service.   A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.